A rock or stone about the size of a man’s fist was the weapon with which appellant struck the deceased the blow which caused the death, and, whilst it is proven that the death ensued from the means used, it is not proven that the stone was necessarily a deadly weapon, and the fact that appellant intended to kill can only be deduced from antecedent circumstances and the result or effects of the blow he inflicted.
In brief, these antecedent facts are that defendant had threatened to “get even” with Schmidt because he refused to pay the full amount defendant claimed to be due him. Defendant followed him several blocks, and, when an opportunity offered, he threw the stone, striking deceased on the back of the head, and at a time when deceased did not see or know of his whereabouts.
Under the facts developed, we are of opinion that the jury should have been instructed in conformity with the provisions of article 612 Penal Code, which declares that “the instrument or means by which a homicide is committed are to be taken into consideration in judging of the intent of the party offending; if the instrument be one not likely to produce death it is not to be presumed death was designed, unless from the manner in which it was used such intention evidently appears.” It was the intent which was the essential point in the case, and the jury, in arriving at it, should have been instructed fully in the provisions of the law which furnished the criterion by which it should be ascertained.
We have carefully inspected the charge of the court, and it *141fails to present the law as it is written above in the plain and unambiguous language of the statute. In its application to the facts, the charge appears in part confused, and lacks the perspecuity and comprehensiveness characteristic of the learned trial judge.
Opinion delivered October 29, 1887.For error of omission in the charge, as above pointed out, the judgment is reversed and the cause remande^.
Reversed and remanded.